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W.R. Grasle Co. & Argonaut Ins. Co. v. Mumby (6/26/92), 833 P 2d 10
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
W.R. GRASLE COMPANY & ARGONAUT )
INSURANCE COMPANY, )
Appellants, ) File No. S-4186
v. ) 3AN 87 8269 CI
ROBERT MUMBY, ) O P I N I O N
Appellee. ) [No. 3853 - June 26, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William H. Fuld, Judge.
Appearances: Allan J. Olson, John T. Robert
son, Staley, DeLisio, Cook & Sherry, Anchor
age, for Appellants. Chancy Croft, Chancy
Croft Law Office, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
This workers' compensation appeal presents the question
whether W.R. Grasle Co. (Grasle) should continue to pay Robert
Mumby's medical expenses for treatment of his chronic
hypertension. The Alaska Workers' Compensation Board (Board)
determined that Grasle rebutted the presumption that Mumby's
hypertension was job related and denied Mumby's claim for
compensation. The superior court reversed, holding that the
Board's decision was not supported by substantial evidence.
Grasle now appeals claiming that the superior court erred in
reversing on this point. Two subsidiary issues are whether
laches bars Grasle's controversion of liability and whether the
superior court improperly awarded attorney's fees.
The record supports the Board's determination that
Grasle overcame the presumption of compensability. Specifically,
the Board reasonably relied on Dr. Kloster's testimony to
conclude that Mumby's hypertension was neither caused nor
worsened by his work related back injury or the pain associated
with it. In Grainger v. Alaska Workers' Comp. Bd., 805 P.2d 976
(Alaska 1991), we held that an employer can overcome the
presumption of compensability:
by presenting substantial evidence that
either (1) provides an alternative
explanation which, if accepted, would exclude
work related factors as a substantial cause
of the disability; or (2) directly eliminates
any reasonable possibility that employment
was a factor in causing the disability.
Id. at 977 (footnote omitted).
In this case Dr. Kloster testified that shortly after
his accident, Mumby exhibited a symptom of chronic hypertension
(i.e. a thickening of the heart muscle) which normally takes
years to develop. The doctor further testified that Mumby's blood
pressure readings in the 60's and early 70's indicated that he
was on the way to developing chronic hypertension well before he
slipped and injured his back at work. Based on his experience
treating patients with chronic hypertension, his examination of
Mumby, and Mumby's medical records, Dr. Kloster concluded that
neither Mumby's injury nor the pain associated with the injury
was a substantial or contributing factor to the development of
Mumby's hypertension. Dr. Kloster testified that Mumby's high
blood pressure following the injury was simply part of a natural
progression of his condition. In other words, Mumby would have
developed chronic hypertension whether or not he had been
injured. This testimony is a sufficient "alternative
explanation"which the Board reasonably accepted to support its
conclusion that Grasle had rebutted the presumption of work
Given our holding, the attorney's fees award must also
be reversed since Mumby is no longer a "successful claimant."
See Alaska R. App. P. 508(g)(2). The Board's decision that
laches should not apply in this case is also supported by the
1. The Board found that Mumby suffered no undue prejudice
as a result of Grasle's delay in controverting the claim. Mumby
notes that Grasle paid for the treatment of his hypertension for
over a decade. He then argues that had he known that Grasle
would challenge the cause of his hypertension back in the 70's he
could have accumulated the medical evidence that would
demonstrate his entitlement to benefits. He also argues that the
testimony of his own physician, Dr. Morgan, suffered as a result
of the long delay because he could not clearly remember important
The Board responded to these arguments by noting that
their decision was based on the expertise of the doctors
interpreting the medical record. The Board's decision stated that
"[t]he problem is not in the availability of evidence but the
interpretation thereof." Mumby could have produced an expert in
hypertension at the hearing, rather than relying solely on Dr.
Morgan, a general practitioner. Furthermore, the essence of Dr.
Kloster's testimony was that the signs of chronic hypertension
were evident before the injury; Mumby could not very well have
had additional tests done for this crucial time period.